Shredded Wheat Documents: Cereal as Intellectual Property

Patented in 1895 by Henry Perky, Shredded Wheat was initially denounced as tasteless by John Kellogg: like “eating a whisk broom.”

As Perky found success in manufacturing the cereal, however, Kellogg did offer to buy him out, but for too low a price.

Perky died in 1908 and the “Shredded Wheat Company” continued as exclusive manufacturers of the biscuits until Perky’s utility patents expired in 1912…

At this point Kellogg’s began to manufacture their own version of Shredded Wheat and a series of litigations began, culminating in the landmark “Kellogg Co. v. National Biscuit Co.”

The Shredded Wheat Company was acquired by the National Biscuit Company in 1930, and two years later Nabisco brought yet another suit, which six years later would reach the Supreme Court …

The Court’s analysis.. compared the size, form and color of the cereal cartons in which each company sold its biscuits, and noted the use (and size and prominence) of a house mark by Kellogg to differentiate its product. Indeed, the Court went so far as to assess the post-sale market such as restaurants, in which (because the carton was not present) the size and appearance of the competing biscuits themselves were crucial. Kellogg’s biscuit was only two thirds of the size of Nabisco’s biscuit, and slightly different in appearance…

…the Kellogg Court found both the term SHREDDED WHEAT and the pillow shape of the biscuits to be generic…